AMENDMENT NO. 12 TO RECEIVABLES PURCHASE AGREEMENT
Exhibit 10.1
EXECUTION COPY
THIS AMENDMENT NO. 12 TO RECEIVABLES PURCHASE AGREEMENT dated as of July 1, 2010 (this
“Agreement”) is entered into among INSIGHT RECEIVABLES, LLC (the “Seller”), INSIGHT
ENTERPRISES, INC. (“Insight” and the “Servicer”), the Purchasers and Managing
Agents party hereto, and JPMORGAN CHASE BANK, N.A. (successor by merger to Bank One, NA (Main
Office Chicago)), as agent for the Purchasers (in such capacity, the “Agent”). Capitalized
terms used herein but not defined herein shall have the meanings provided in the Receivables
Purchase Agreement defined below.
W I T N E S S E T H
WHEREAS, the parties hereto are parties to that certain Receivables Purchase Agreement dated
as of December 31, 2002 (as amended, restated, supplemented or otherwise modified from time to
time, the “Receivables Purchase Agreement”);
WHEREAS, the parties hereto have agreed to amend the Receivables Purchase Agreement on the
terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
SECTION 1. Amendment. Subject to the fulfillment of the conditions precedent set
forth in Section 2 below, the Receivables Purchase Agreement is hereby amended as follows:
1.1 Section 5.1 thereof is hereby amended to add the following new clause (z) at the end
thereof:
(z) Payments in Ordinary Course. Each remittance of Collections by the Seller
to the Agent, the Managing Agents or the Purchasers hereunder will have been made (i) in
payment of a debt incurred in the ordinary course of business or financial affairs and (ii)
in the ordinary course of business or financial affairs.
1.2 Section 9.1(g)(iii) thereof is amended to delete the reference therein to “6.50%” and to
substitute “6.00%” therefor
1.3 Section 10.2 thereof is hereby amended and restated in its entirety as follows:
Section 10.2 Increased Cost and Reduced Return. (a) If any Regulatory Change
(i) subjects any Purchaser or any Funding Source to any charge or withholding on or with
respect to any Funding Agreement or this Agreement or a Purchaser’s or Funding Source’s
obligations under a Funding Agreement or this Agreement, or on or with respect to the
Receivables, or changes the basis of taxation of payments to any Purchaser or any Funding
Source of any amounts payable under any Funding Agreement
or this Agreement (except for
changes in the rate of tax on the overall net income of a Purchaser or Funding Source or
taxes excluded by Section 10.1) or (ii) imposes, modifies or deems applicable any
reserve, assessment, fee, tax, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or liabilities of a Funding Source
or a Purchaser, or credit extended by a Funding Source or a Purchaser pursuant to a Funding
Agreement or this Agreement or (iii) imposes any other condition the result of which is to
increase the cost to a Funding Source or a Purchaser of performing its obligations under a
Funding Agreement or this Agreement, or to reduce the rate of return on a Funding Source’s
or Purchaser’s capital as a consequence of its obligations under a Funding Agreement or this
Agreement, or to reduce the amount of any sum received or receivable by a Funding Source or
a Purchaser under a Funding Agreement or this Agreement, or to require any payment
calculated by reference to the amount of interests or loans held or interest received by it,
then, upon demand by the applicable Managing Agent, Seller shall pay to such Managing Agent,
for the benefit of the relevant Funding Source or Purchaser, such amounts charged to such
Funding Source or Purchaser or such amounts to otherwise compensate such Funding Source or
such Purchaser for such increased cost or such reduction. The term “Regulatory
Change” shall mean (i) the adoption after the date hereof of any applicable law, rule or
regulation (including any applicable law, rule or regulation regarding capital adequacy) or
any change therein after the date hereof, (ii) any change after the date hereof in the
interpretation or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or compliance
with any request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, or (iii) the compliance, whether commenced
prior to or after the date hereof, by any Funding Source or Purchaser with the final rule
titled Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance:
Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles;
Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues,
adopted by the United States bank regulatory agencies on December 15, 2009, or any rules or
regulations promulgated in connection therewith by any such agency.
(b) A certificate of the applicable Purchaser or Funding Source setting forth the
amount or amounts necessary to compensate such Purchaser or Funding Source pursuant to
paragraph (a) of this Section 10.2 shall be delivered to the Seller and shall be
conclusive absent manifest error.
(c) If any Purchaser or any Funding Source has or anticipates having any claim for
compensation from the Seller pursuant to clause (iii) of the definition of Regulatory Change
appearing in paragraph (a) of this Section 10.2, and such Purchaser or Funding
Source believes that having the facility publicly rated by one credit rating
agency would reduce the amount of such compensation by an amount deemed by such
Purchaser or Funding Source to be material, such Purchaser or Funding Source shall provide
written notice to the Seller and the Servicer (a “Ratings Request”) that such
Purchaser or Funding Source intends to request a public rating of the facility from one
credit rating agency selected by such Purchaser or Funding Source and reasonably acceptable
to the Seller, of at least “A”, or its equivalent (the “Required Rating”). The
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Seller and the Servicer agree that they shall cooperate with such Purchaser’s or Funding
Source’s efforts to obtain the Required Rating, and shall provide the applicable credit
rating agency (either directly or through distribution to the Agent, applicable Managing
Agent, Purchaser or Funding Source), any information requested by such credit rating agency
for purposes of providing and monitoring the Required Rating. The Managing Agents shall pay
(i) the initial fees payable to the credit rating agency for providing the rating, (ii)
reasonable attorneys’ fees of counsel for Managing Agents and the Seller, payable in
connection with obtaining the rating, subject to a cap of $10,000 in the aggregate, and
(iii) all ongoing fees payable to the credit rating agency for their continued monitoring of
the rating, in each case allocated among the Managing Agents based on the Pro Rata Share of
their Purchaser Groups. Nothing in this Section 10.2(c) shall preclude any
Purchaser or Funding Source from demanding compensation from the Seller pursuant to
Section 10.2(a) hereof at any time and without regard to whether the Required Rating
shall have been obtained, or shall require any Purchaser or Funding Source to obtain any
rating on the facility prior to demanding any such compensation from the Seller.
1.4 The definition of “Amortization Date” set forth in Exhibit I thereto is amended and
restated in its entirety as follows:
"Amortization Date” means the earliest to occur of (i) the day on which any of
the conditions precedent set forth in Section 6.2 are not satisfied, (ii) the
Business Day immediately prior to the occurrence of an Amortization Event set forth in
Section 9.1(d)(ii), (iii) the Business Day specified in a written notice from the
Agent following the occurrence of any other Amortization Event pursuant to Section
9.2 hereof, (iv) the Business Day specified in a written notice from the Agent following
the failure to obtain the Required Rating within 90 days following delivery of a Ratings
Request to the Seller and the Servicer, and (iv) the date which is 30 days after the Agent’s
receipt of written notice from Seller that it wishes to terminate the facility evidenced by
this Agreement.
1.5 Exhibit I thereto is amended to add the new definition “Applicable Price Differential”
thereto in alphabetical order”
"Applicable Price Differential” has the meaning set forth in the Fee Letter.
1.6 The definition of “Deducted Receivable” set forth in Exhibit I thereto is amended and
restated in its entirety as follows:
"Deducted Receivables” means, collectively, the California Contingent
Receivables, the Software Spectrum Government Receivables, and all Receivables the Obligor
of which is Microsoft Corporation or any of its subsidiaries.
1.7 Clause (ii) of the definition of “Eligible Receivable” set forth in Exhibit I thereto is
amended to delete the reference therein to “25%” and to substitute “35%” therefor.
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1.8 Clause (v) of the definition of “Eligible Receivable” set forth in Exhibit I thereto is
amended and restated in its entirety as follows:
(v) which by its terms is due and payable within 90 days of the original invoice date
therefor and has not had its payment terms extended; provided, however, that
(i) no more than 35% of the aggregate Outstanding Balance of all Eligible Receivables may be
due and payable more than 30 days and within 60 days after the original invoice date thereof
and (ii) no more than 10% of the aggregate Outstanding Balance of all Eligible Receivables
may be due and payable more than 60 days and within 90 days after the original invoice date
thereof;
1.9 The definition of “Facility Termination Date” set forth in Exhibit I thereto is amended
and restated in its entirety as follows:
"Facility Termination Date” means the earliest of (i) April 1, 2013, (ii) the
Liquidity Termination Date and (iii) the Amortization Date.
1.10 The definition of “Fee Letter” set forth in Exhibit I thereto is amended and restated in
its entirety as follows:
"Fee Letter” means (i) that certain Fourth Amended and Restated Fee Letter,
dated as of June 24, 2010, among Seller, the Agent and the Managing Agents and (ii) any
other letter designated as a “Fee Letter” therein and entered into between Seller and any of
the parties hereto from time to time, in each case as such letter may be amended, restated,
supplemented or otherwise modified and in effect from time to time.
1.11 The definition of “LIBO Rate” set forth in Exhibit I thereto is amended to delete the
reference therein to “4.25%” and to substitute “3.45% plus the Applicable Price Differential”
therefor.
1.12 The definition of “Liquidity Termination Date” set forth in Exhibit I thereto is amended
and restated in its entirety as follows.
"Liquidity Termination Date” means April 1, 2013 or such later date to which
the Liquidity Termination Date may be extended in accordance with Section 12.3.
1.13 Exhibit I thereto is amended to add the following new definitions thereto in alphabetical
order:
"Ratings Request” has the meaning set forth in Section 10.2(c).
"Required Rating” has the meaning set forth in Section 10.2(c).
SECTION 2. Conditions Precedent. This Agreement shall become effective as of the
close of business on the date first above written, subject to the satisfaction of the conditions
precedent that (a) the Managing Agents shall have received: (i) counterparts of this Agreement
executed by each of the parties hereto, (ii) a Reaffirmation of Performance Undertaking in the form
attached as Exhibit A, executed by Insight, and (iii) all fees and expenses required to be paid on
the date hereof pursuant to the terms of the Fee Letters and (b) the Managing Agents shall have
received for the ratable account of the Purchasers in their respective Purchaser Groups, all fees
required to be paid on the date hereof pursuant to the Fourth Amended and Restated Fee Letter,
dated as of July 1, 2010, by and among the Agent, PNC Bank, National Association and the Seller.
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SECTION 3. Representations and Warranties. Each of the Seller and the Servicer hereby
represents and warrants that (i) this Agreement constitutes its legal, valid and binding
obligation, enforceable against such party in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law) and the implied covenants of
good faith and fair dealing; and (ii) after giving effect to this Agreement, the representations
and warranties of each such party, respectively, set forth in Article V of the Receivables
Purchase Agreement are true and correct in all material respects with the same effect as if made on
the date hereof, except to the extent such representations and warranties expressly relate to an
earlier date. The Seller further represents and warrants that after giving effect to this
Agreement, no event has occurred and is continuing that constitutes an Amortization Event or a
Potential Amortization Event.
SECTION 4. Reference to and Effect on the Receivables Purchase Agreement.
4.1 Upon the effectiveness of this Agreement, (i) each reference in the Receivables Purchase
Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall mean
and be a reference to the Receivables Purchase Agreement, as amended hereby, and (ii) each
reference to the Receivables Purchase Agreement in any other Transaction Document or any other
document, instrument or agreement executed and/or delivered in connection therewith, shall mean and
be a reference to the Receivables Purchase Agreement as amended hereby.
4.2 Except as specifically amended hereby, the terms and conditions of the Receivables
Purchase Agreement, of all other Transaction Documents and any other documents, instruments and
agreements executed and/or delivered in connection therewith, shall remain in full force and effect
and are hereby ratified and confirmed.
4.3 The execution, delivery and effectiveness of this Agreement shall not operate as a waiver
of any right, power or remedy of the Agent, any Purchaser or any Managing Agent under the
Receivables Purchase Agreement or any other Transaction Document or any other document, instrument
or agreement executed in connection therewith, nor constitute a waiver of any provision contained
therein, in each case except as specifically set forth herein.
SECTION 5. Costs and Expenses. The Seller agrees to pay on demand all reasonable
costs and expenses of the Agent, the Managing Agents and the Purchasers in connection with the
preparation, execution and delivery of this Agreement and the other instruments and documents to be
delivered in connection herewith, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Agent, the Managing Agents and the Purchasers with
respect thereto and with respect to advising the Agent, the Managing Agents and the Purchasers as
to their respective rights and responsibilities hereunder and thereunder.
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SECTION 6. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument.
SECTION 7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, BUT NOT LIMITED TO, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 8. Section Titles. The section titles contained in this Agreement are and
shall be without substance, meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the date first above written.
| INSIGHT RECEIVABLES, LLC |
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| By: | Insight Receivables Holding, LLC, its Sole Member | |||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Treasurer | |||
| INSIGHT ENTERPRISES, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Treasurer | |||
Signature Page to
Amendment No. 12 to Receivables Purchase Agreement
Amendment No. 12 to Receivables Purchase Agreement
| JUPITER SECURITIZATION COMPANY LLC (successor by merger to JS Siloed Trust), as a Conduit |
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| By: | JPMorgan Chase Bank, N.A., its administrative trustee | |||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Executive Director | |||
| JPMORGAN CHASE BANK, N.A., as a Financial Institution, as Agent and as a Managing Agent |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Executive Director | |||
Signature Page to
Amendment No. 12 to Receivables Purchase Agreement
Amendment No. 12 to Receivables Purchase Agreement
| MARKET STREET FUNDING LLC, as a Conduit |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President | |||
| PNC BANK, NATIONAL ASSOCIATION as a Financial Institution and a Managing Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
